West Coast Environmental Law
Research Foundation
NewsletterWest Coast Environmental Law
Research Foundation
NewsletterFederal environment minister Sheila Copps announced last week that the Canadian Environmental Assessment Act (CEAA) will be proclaimed in force in January 1995. The government also approved three amendments to the Act and four regulations under the Act.
The announcement coincided with the twelfth meeting of the multi-sector Regulatory Advisory Committee (RAC) in Ottawa, where Clifford Lincoln, Parliamentary Secretary to the Minister, and Michel Dorais, Executive Chairman of the Federal Environmental Assessment Review Office (FEARO), provided a briefing on the government's decision. The Committee welcomed the announcement, but with relief more than elation. Proclamation in January 1995 will be a full two and a half years after the Act was given Royal Assent in June 1992, and there has been considerable political opposition to going ahead with the Act. Apparently, Sheila Copps had to bring the Act back to Cabinet half a dozen times before the final go-ahead was given.
The amendments, which are to be tabled in the House of Commons later this month, will:
1. Require (not just allow) the government to provide a participant funding program (a key demand of environmental groups);
2. Confirm the "one project/one assessment principle" (a key demand of industry groups); and
3. Require the federal cabinet (not the minister of the department responsible for the project) to make a decision in response to the recommendations of an environmental assessment review panel under the Act. This boosts the stature of the review panels.
The four regulations are:
1. The 'Law List' — federal regulatory powers which when used to allow projects to proceed will trigger the need for an environmental assessment of the projects;
2. The 'Comprehensive Study List' — projects that automatically require a thorough environmental assessment rather than the usual 'screening';
3. The 'Inclusion List' — certain activities (as opposed to 'physical works') within federal jurisdiction that must be environmentally assessed; and
4. The 'Exclusion List' — projects that won't have to be assessed at all.
Significantly, the Law List will not include federal approval of energy exports, despite the recommendation of the RAC and the strong support of environmental groups.
CELA urged B.C. Premier Mike Harcourt to proceed with his government's contaminated sites initiative despite strong criticisms of the initiative made at the annual meeting of the Union of B.C. Municipalities in Whistler in mid-September.
In a recent letter, Bill Andrews told the Premier that "Bill 26 (the Waste Management Amendment Act, 1993) was solid, common-sense legislation when it was passed, and it still is." He said, "The proposed regulations are reasonable and reflect extensive modifications based on input from a wide variety of parties, including some who are now decrying the whole contaminated sites initiative."
Andrews noted that this legislation and the proposed regulations have undergone more consultation with a larger range of interested parties — especially including non-environmentalist parties such as municipalities, industry associations, lenders, and real estate organizations — than any other B.C. legislation.
He also denied the claim that Bill 26 is draconian: "On the contrary, Bill 26 significantly — and quite properly — constrains and structures the government's existing legal power to impose retroactive, absolute, joint and several liability against a very broad range of parties connected with a contaminated site." Although the Bill does implement the polluter pays principle, it provides extensive dispensation for innocent purchasers, municipalities, lenders, minor contributors and others. It also introduces new mechanisms to foster cooperative, non-litigious resolution of liability disputes.
Andrews rejected the critics' claim that there is no scientific basis for the proposed cleanup standards. He stated that the proposed standards are the result of an exhaustive examination of the available scientific information and standards in other jurisdictions. He noted that the standards are designed to protect all species in the environment, not just humans. The Act and the proposed regulations allow for the use of a risk assessment approach at a specific site in substititution for the usual numerical standards approach. Andrews said, "This, and a number of other provisions in the Act and proposed regulations, provide ample flexibility to ensure that cleanup measures will not be excessively expensive."
The Premier has not yet responded.
The multi-sector National Advisory Group on Harmonization (NAG) will meet in Quebec City on October 19 to be briefed on the development of federal-provincial environmental harmonization agreements to be considered by the Council of Canadian Ministers of the Environment (CCME) in early November.
During a September conference call meeting, the NAG agreed with WCELA's proposal that the draft text of the forthcoming agreement(s) be provided to members of the NAG to allow the Advisory Group's advice to be given to the ministers at their November meeting. However, some provincial governments objected to distributing copies of the drafts, lest they be leaked to the media; thus, the face-to-face meeting in Quebec City.
The four top priorities of the harmonization initiative are: environmental impact assessment; licensing and approvals; monitoring; enforcement; and international agreements. The proposed agreements are expected to be subjected to a yet-to-be-determined form of public consultation following approval by the ministers.
Meanwhile, three environmental groups nominated to the NAG by the Canadian Environmental Network (CEN) are considering whether to return to the NAG after withdrawing temporarily in September. The groups expressed doubt that the NAG consultation would be meaningful. They complained that the initiative seemed more concerned with promoting competitiveness than with improving the efficiency of environmental protection measures.
For information about WCELA's involvement in NAG, please contact Bill Andrews.
The provincial government is behind schedule with its plans to regulate groundwater use and water exports through amendments to the Water Act. These legislative changes were supposed to occur in the 1994 legislative session, and have now been promised for 1995.
B.C. is the only province without groundwater regulation. It is sorely needed to address problems such as contamination of aquifers from fertilizers and pesticides; excessive withdrawals from wells in coastal areas causing saltwater intrusion; and poor well construction practices. The Water Branch of the provincial government solicited public input last year on its proposals to regulate groundwater, but has not yet released draft legislation or regulations for further public review.
The contentious issue of bulk water exports also needs to be resolved by legislation. A one year moratorium on new water export licences, first announced in 1993, was recently extended to June 1995. But a moratorium can easily be lifted by another government. A legislative ban would be harder to undo, and should be put in place to satisfy the majority of British Columbians who oppose further giveaways of our water.
The government acknowledges that the Water Act is limited in its ability to accomodate comprehensive stewardship of water. WCELA advocates quick action on legislative amendments to cure the Act's deficiencies.
In our last newsletter we reported that Staff Counsel Ann Hillyer was appointed to the interim board of Forest Renewal BC. FRBC was established by the province earlier this year to plan and implement a regionally equitable program of expenditures in order to "renew the forest economy of BC, enhance the productive capacity and environmental value of forest lands, create jobs, provide training for forest workers and strengthen communities."
The legislation creating FRBC requires five committees be set up to address the following issues:
These committees will be set up soon. If you have suggestions about potential members for any of these committees (names by early November) or if you would like additional information about their mandate and operation, please contact Ann Hillyer.
WCELRF Newsletter (ISSN #0715-4275), copyright 1994, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews, Morgan Ashbridge, John Gibb-Carsley, Chris Heald, Ann Hillyer, Patricia Houlihan, Catherine Ludgate, Linda Nowlan, Denice Regnier, and Kim Stanton. Thanks also to George Collins for the cover-page graphic. Subscription information is above. West Coast Environmental Law Research Foundation does research and education and maintains an environmental law library. West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of West Coast Environmental Law Research Foundation and West Coast Environmental Law Association is to provide legal services to protect the environment and to foster public participation in environmental decision-making. We are grateful to the Law Foundation of British Columbia for core funding of West Coast Environmental Law Association and West Coast Environmental Law Research Foundation. Donations to West Coast Environmental Law Research Foundation are tax creditable.